Federal Court Got It Right: Detaining Mothers and Children to Deter Other Asylum Seekers Is Wrong

Last Friday a federal court ruled that the U.S. Department of Homeland Security cannot continue to detain mothers and children seeking asylum in an attempt to deter others from migrating to the United States. This decision should serve as a reminder that the U.S. commitment to liberty should not be abandoned in the face of a politicized immigration debate.

In June 2014—ironically, on World Refugee Day—the administration announced its strategy for addressing a surge of families seeking asylum at the southern border. Part of this plan: detaining and quickly deporting families from El Salvador, Honduras, and Guatemala. U.S. immigration authorities began denying and opposing the release of mothers and their children—even if the families would normally be eligible for release on bond.

Detention as a deterrent was expressly part of the administration’s policy. U.S. immigration authorities submitted copies of former Attorney General John Ashcroft’s flawed 2003 opinion in Matter of D-J- on the use of detention to deter migration, along with affidavits affirming the implementation of a detention policy to reduce migration from Guatemala, Honduras and El Salvador and “deter further mass migration.”

The government essentially claimed that “one particular individual may be civilly detained for the sake of sending a message of deterrence to other Central American individuals who may be considering immigration,” explained the judge in his decision in RILR v. Johnson. He rejected this approach, granting a preliminary injunction that prohibits the U.S. Department of Homeland Security from “detaining class members for the purpose of deterring future immigration to the United States and from considering deterrence of such immigration as a factor in [its] custody determinations.”

Using detention to deter asylum seekers and migrants is impermissible under international human rights law. A detention policy based on deterrence—by definition—precludes the fair review of the need for detention in the circumstances of the individual case, as called for under the Refugee Convention, its Protocol, and the International Covenant on Civil and Political Rights. UNHCR’s guidelines on detention of asylum seekers also make clear that “detention that is imposed in order to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is inconsistent with international norms.”

But the bottom line is that liberty is a core American value. Warehousing mothers and children in detention centers to deter other asylum seekers runs contrary to American ideals about justice and the rule of law.

Immigration custody decisions should be based on truly individualized assessments. Immigration officials should be asking, “Is this particular person a flight risk? If so, can tools other than detention, like community-based support programs or other alternatives to detention, address that risk?”

This is a fundamentally different approach from the Kafkaesque “individualized” assessment the government argued for—with each mother receiving an “individualized determination” of whether “the individual is part of a mass migration,” thus triggering the Ashcroft deterrence reasoning. Its outcome was essentially pre-determined and allowed the continued detention of mothers and children for months, even if they presented no flight risk—simply to “send a message” to other potential asylum seekers.

The Ashcroft approach also impedes access to legal counsel, as pointed out in a September 2014 letter to Vice President Biden that we sent along with other groups, such as the Association of Pro Bono Counsel (APBCo), which includes leading pro bono counsel from some of the nation’s major law firms. As we and other groups wrote in a November 2014 letter to President Obama, “These policies of detention and attempts at deterrence violate U.S. human rights and refugee protection commitments.” Instead, “U.S. border policies should respect basic human rights standards and set an example for other countries faced with much greater challenges.”

With this federal ruling, the Obama administration has an opportunity to right its course. Not only should it immediately halt its reliance on deterrence as a basis for detention, but it should also abandon its attempt to justify the use of this flawed approach to the U.S. federal courts, as well as its broader use of the harmful practice of family detention. Real leadership includes changing track and rejecting policies that are not consistent with American values, our Constitution, and our human rights commitments.